CHAPTER 2

“The First Amendment expresses something that is fundamental about our entire society…It expresses rights that reach beyond the press as an industry to the people themselves.”

Christopher B. Daley

The internet has given rise to a cacophony of voices and to new concerns about the veracity of news and information.

- Media and Democracy: Our American History

FINDINGS

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A distinctive characteristic of the U.S. political system is its enduring commitment to a free press as vital to maintaining liberty and good government.

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The U.S. government, from its earliest days, encouraged a vigorous press both by ensuring press freedom (the First Amendment) and by providing economic support (through low postal rates) for the wide dissemination of news.

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Despite a strong tradition of support for a free press, throughout American history there have been repeated attacks on the excesses of the press and efforts to ensure the “responsibility” of the press, often when a new medium appears on the scene that threatens to disrupt existing media.

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A recurring concern about the press has been the dominance of a limited number of media channels and the struggle of ordinary citizens to gain access to these channels to express their viewpoints. The internet has largely solved this problem by its radical openness, giving a voice to all users, but has created a novel set of problems for users in judging the authenticity and quality of news.

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An enduring problem for the media is the tension between the drive to maximize profit and the imperative to serve the public good with high-quality journalism. Another ongoing tension is between the press as a megaphone for partisan political views and the press as an independent, professional reporter of facts.

The press has been a vital element of American democracy since the country’s earliest days. For that reason, the Framers created strong and unique protections for speech and press in the American Constitution. The First Amendment, which bans Congress from making any law “abridging the freedom of speech, or of the press,” has provided the media with enduring protection from government interference. Nonetheless, over time, the news media in the United States have seen recurring doubts about their role and their impact on society.

For the first century and a half of the American republic, the story of the press was essentially that of the evolving role of printed newspapers. Not until the 20th century did the press expand to include radio and television (first broadcast, then cable). At the end of the century, the rise of digital media broadened the press still further. Today, virtually all Americans walk around with the equivalent of a constantly updated interactive newspaper—and much more—in their pockets.

Early Days

In his seminal study, The Creation of the Media, historian and sociologist Paul Starr recounts how newspapers were a distinctive presence in colonial America and central to how the emerging confederation thought of itself. Given the key roles of the press in achieving independence, the Founders were not shy about protecting the press as a key component of the American political system.

As early as 1719, Boston had two newspapers and by 1735, when the city’s population was just 15,000, the city supported five newspapers, while a dozen papers were being published elsewhere in the colonies. In 1774 the Continental Congress officially recognized that the press played an important role, not only in advancing “truth, science, morality and arts in general,” but in promoting discussion “whereby officers are shamed into more honorable and just modes of conducting affairs.” The country’s early leaders understood that the press “had served as a means by which colonists had debated their common interests, developed a national identity and created capacities for cooperative action.”i

Once it achieved independence, the American government took two critical steps to protect and promote the press. Through the First Amendment, it restrained itself from limiting the freedom of the press. And through the Post Office Act of 1792, which provided newspapers with special discounts and privileges, it actively encouraged the wide dissemination of news. Not only did the Act set low postal rates for newspapers, it also mandated that newspaper publishers could exchange copies with one another for free.

The American policy of protecting and promoting a free press set it at odds with much of the rest of the world. While the U.S. supported the spread of news, much of Europe taxed and restricted publications. Prior to the 17th century, the prevailing notion among the rulers of Europe was that “ordinary people were not concerned with government.”ii A 1620 English royal decree stated that political matters were “not themes or subjects fit for vulgar persons or common meetings” and made divulging parliamentary proceedings a crime. Even though printed newspapers began to appear in Europe in the 17th century, they frequently had to contend with restrictive licensing, high taxes and extensive censorship.

What made America distinctive is the recognition that its democracy depended on an informed and engaged citizenry. And that, in turn, depended on a free press to inform them about what their government was doing and to allow them to express their views. As Christopher B. Daley noted in his history of journalism in America:

The First Amendment expresses something that is fundamental about our entire society…. It expresses rights that reach beyond the press as an industry to the people themselves. The press is empowered by the First Amendment to discover facts and to articulate arguments not for its own benefit but for the benefit of the public as a whole. In order for them to govern themselves, the people must have reliable information. The press freedom asserted in the First Amendment is therefore a trust placed in the press on behalf of the broader society.iii

From the early days of the Republic, the press was essentially and often fiercely partisan, a role that has evolved over time but has never disappeared. Readers did not expect their newspapers to report objectively on events of the day, but rather to represent the views of the parties that subsidized them.

Despite the constitutional protections it enjoyed, the press in America has not been immune from attacks on its freedom. According to Daley, “Government agencies, the military, churches, courts, corporations and other powerful institutions have regularly attempted to limit press freedom since the country’s founding, and they have succeeded more often than most Americans like to admit.”iv

In fact, not long after America became independent, some politicians began to chafe at partisan attacks from the press. The Sedition Act of 1798, passed less than a decade after ratification of the Bill of Rights, made it a crime to “write, print, utter or publish…any false, scandalous and malicious writing against the government, Congress or the President.”

The Act was an attempt to suppress the expression of political dissent at a time when conflict between the country’s first two political parties, the Federalists and the Democratic-Republicans, was growing in intensity. A number of newspaper editors were convicted and jailed under the Act. However, the law eventually backfired when those it intended to punish became popular heroes. After the election of 1800, Congress allowed the Sedition Act to expire, and newspapers began to thrive.

Growing Pains

Throughout the 19th century, the press, and particularly the daily newspaper, continued to grow—and to generate controversy. Several technical innovations helped to lower the cost of newspapers. In the 1830s, the shift to steam-powered presses led to the rise of the “penny press,” and in the 1860s, the introduction of newsprint (paper manufactured from wood pulp rather than rags) further reduced costs of producing a newspaper.

The increasing popularity of newspapers was accompanied by a substantial increase in voter participation, which grew from 27 percent in the presidential election of 1824 to 78 percent in 1840.v By the eve of the Civil War, the country was home to 4,000 newspapers and periodicals, of which three-fourths were partisan publications. Many of these were adamantly opposed to President Lincoln, who complained that Horace Greeley, the founder and editor of The New York Tribune, was causing him “almost as much trouble as the whole Southern Confederacy.”vi Although Lincoln generally chose to tolerate press opposition, strong-arm tactics against journalists were not uncommon. In 1861, for example, some 200 newspapers were subject to attacks from federal agencies, civilian mobs or Union troops.vii

Following the Civil War, the press and freedom of speech came under a different type of attack, motivated by an impulse to ban popular works that were deemed likely to contribute to immorality. An 1873 federal law, known as the Comstock Act (named after anti-obscenity crusader Anthony Comstock), made it a crime to send through the mail “any publication of an indecent character.” After being appointed as a special agent of the U.S. Post Office, Comstock led prosecutions of more than 3,000 defendants.viii It was not until 1983 that the Supreme Court ruled the Act unconstitutional.

Despite these challenges, the popularity of newspapers continued to grow. Total daily circulation in the U.S. grew from 34 newspapers per 100 households in 1870 to 121 per 100 households in 1910, or an average of more than one daily newspaper per household. As papers became more economically successful, generating revenue from advertising and sales rather than political subsidies, they tended to become more independent and less tied to a particular party. But that did not free them from controversy.

As the readership for newspapers spread to larger mass audiences, the focus of news tended to expand from politics to topics like crime, sports and human-interest stories. In the late 19th and early 20th centuries, concern about the impact of the press found a new target in the rise of highly successful but often sensationalistic newspapers:

The ‘yellow journalism’ of the 1890s and the tabloid journalism of the 1920s and 1930s stigmatized the press as a profit motivated purveyor of cheap thrills and vicarious experiences. To its many critics, it seemed as though the press was using the freedom from regulation it enjoyed under the First Amendment to make money instead of fulfilling its vital role as an independent source of information in a democracy.ix

Perhaps the most notorious practitioner of yellow journalism was William Randolph Hearst, who along with Joseph Pulitzer has been credited by some with helping to start the Spanish- American War. In 1898, when a somewhat mysterious explosion occurred on the warship Maine while it was anchored in the Havana harbor, Hearst’s New York Post immediately ran a headline proclaiming, “The War Ship Maine was Split in Two by an Enemy’s Secret Infernal Machine.”

Improving the Quality of Journalism

Around the turn of the 20th century, dissatisfaction with the excesses of many newspapers provoked a number of counter-responses, a pattern that is still occurring today. In 1896 Adolph Ochs purchased The New York Times, originally founded in 1851, and committed the paper to reporting that was detailed, factual and reliable. In 1908 Mary Baker Eddy, the founder of Christian Science, created The Christian Science Monitor to counteract what she saw as the dangers of fearmongering by the popular press.28 The Monitor was deliberately non-sensationalist and gained a reputation for impartial reporting.

Several other steps were taken to advance journalism as a profession and improve the quality of reporting. In 1908, the University of Missouri established the first school of journalism in the United States. Shortly thereafter, the school’s founder and first dean, Walter Williams, offered what he called “The Journalist’s Creed,” (see sidebar) which is still displayed on a plaque in the National Press Club in Washington. In 1910, the Kansas State Editorial Association adopted the industry’s first code of ethics, which called on publishers to avoid “the publication of fake illustrations…fake interviews…and the issuance of fake news dispatches.” When Joseph Pulitzer died in 1911, he left money in his will to set up the Columbia University School of Journalism (1912) and to establish the Pulitzer Prizes for excellence in journalism (1917).

Despite initiatives like these, concerns about the “tabloidization” of the news have persisted. The bigger the audience, the more a media entity can charge advertisers. In a competitive capitalist society, it is unlikely that the impulse to pursue popularity over objectivity will disappear, nor will efforts to constrain it.

Rise of National Media—and National Concerns

A big shift in the media landscape came in the 20th century with the arrival of highly successful national magazines and the immense popularity of advertising-based radio and television broadcasting.

With the rise of fascism and its attendant propaganda in the 1920s and ’30s, a controversy arose about the trustworthiness of media, foreshadowing recent concerns about the role of news and its veracity. In 1920, Walter Lippmann, the eminent political commentator, published a tract titled Liberty and the News in which he argued that “the present crisis of western democracy is a crisis in journalism.” Recognizing the power of propaganda to shape public opinion, he warned that “the freedom of thought and speech present themselves in a new light and raise new problems because of the discovery that opinion can be manufactured.” Lippmann called on journalists to be more “objective,” to “develop a sense of evidence” and to be transparent about the limitations of the information available to them.

The most ambitious effort to examine the role of journalism in the U.S. came in 1947 with the publication of the report of the Commission on Freedom of the Press, known as the Hutchins Commission, which was funded by Time founder Henry Luce. The report, titled A Free and Responsible Press, summarized its key findings in its opening paragraphs:

The Commission set out to answer the question: Is the freedom of the press in danger? Its answer to the question is: Yes. It concludes that the freedom of the press is in danger for three reasons:

First, the importance of the press to the people has greatly increased with the development of the press as an instrument of mass communication. At the same time the development of the press as an instrument of mass communication has greatly decreased the proportion of the people who can express their opinions and ideas through the press.

Second, the few who are able to use the machinery of the press as an instrument of mass communication have not provided a service adequate to the needs of society.

Third, those who direct the machinery of the press have engaged from time to time in practices which the society condemns and which, if continued, it will inevitably undertake to regulate or control.

Like other media critics before and after, the Hutchins Commission grappled with the tensions between the press’s commitment to keeping the public informed and the pressure to maximize financial performance. The Commission warned that if the “giant agencies of communication are irresponsible, not even the First Amendment will protect their freedom from government control. The Amendment will be amended.”

Additionally, the Hutchins Commission identified the relative lack of access of ordinary people to “the press as an instrument of mass communications” as a central issue—an issue that would be utterly transformed by the rise of the internet.

The Age of Television News

With the arrival of television after World War II, broadcasting took on an even more prominent role in American life. While radio and TV were primarily purveyors of entertainment, which drew the largest ratings and generated the most advertising revenue, they regularly reported the news both out of a sense of obligation and legal necessity.

Broadcasters, who needed government permission to use the public airwaves, did not enjoy the same sweeping First Amendment protections that print journalists had. Holders of broadcast licenses, for example, were subject to the Fairness Doctrine, in force from 1949 to 1987, which required them to “present controversial issues of public importance” and to do so in manner that was “honest, equitable, and balanced.” This policy effectively restrained most broadcasters from promoting a political viewpoint.

This is not to say that broadcasters and TV news were not powerful forces in American political life. From the 1960s through the 1980s, a majority of adult Americans watched one of the three evening network news programs daily, giving the networks great power to define in a nightly half-hour which issues were important, and which were not.

Television had a unique ability to make distant events immediate and vividly real, thereby shaping public opinion.x When CBS News anchor Walter Cronkite, known as “the most trusted man in America,” departed from his normal apolitical stance to express misgivings on air about the Vietnam War, it was a seminal moment.

In the years following World War II, an era of unprecedented growth in America’s economic prosperity and global political power, the mass media became ever more massive. Controlled by a handful of powerful gatekeepers that tended to share a centrist perspective, the media played, in effect, a homogenizing and standardizing role in American political culture.

Reinforcing this role, the business of advertising led broadcasters mostly to avoid controversial or divisive programming. The networks’ true customers were their advertisers, who wanted to reach the largest possible audience and were not interested in supporting programming that ran the risk of alienating viewers.

The rise of television also had a disruptive impact on the newspaper industry. Afternoon newspapers’ subscriptions fell as the audience for evening news on television rose. In cities, consolidation among newspapers made most markets virtual monopolies. Meanwhile, local newspapers often saw themselves as responsible for reflecting “the issues, events, experiences and ideas of the entire community” and set the news agenda for the community.

Another factor in the changing landscape of news was the evolving role of radio. In response to the increasing popularity of FM radio, which offered better sound quality for music, AM stations began looking for new, nonmusical formats. With the Fairness Doctrine no longer in effect, radio commentators, somewhat shunned by mainstream media, found a home where they could express strong political opinions without worrying about the need to provide opposing viewpoints. Political talk radio, mostly with a strong conservative bent, blossomed and quickly spread from a few local stations to national networks. More recently, the FCC’s relaxation of limits on the number of broadcast licenses that can be held by a single owner made it possible for individual companies to control large numbers of stations.

The New Media

The next major shift in the media ecology occurred over the past several decades, with the rise first of cable television and then the internet. These developments weakened the hegemony of national TV broadcast news and brought additional competition to the printed press.

The launch of CNN in 1980 meant that television news was no longer confined to a nightly half- hour. It now operated on a 24-hour cycle. After an initial diet of round-the-clock news shows, CNN and its eventual competitors began increasingly to rely on commentary, producing shows with pundits and partisan commentators, blurring the line between factual reporting and interpretive discussion.

The arrival of the Fox News Channel and MSNBC in 1996 blurred the line even more and increased perceptions of media bias with programming designed to appeal to viewers who shared the same political perspective. These channels included “breaking news” but emphasized commentary from right- and left-leaning perspectives. The Fairness Doctrine never applied to cable television and was repealed in 1987 in any event. As MIT’s Ethan Zuckerman observed, “After a long age where partisan journalism was less common...cable news made partisan news viable again.”

The most recent and perhaps most far-reaching force in shaping the dissemination of news has been the internet. Over the past two decades, the portion of the population that gets much of its news online has grown dramatically, as the audience on traditional news media has declined. By making access to news faster, cheaper and more convenient, the internet has disrupted the creation, delivery and consumption of news, just as it has altered other industries. By enabling more precise targeting of advertising, the internet has also siphoned substantial ad revenues from traditional media.xi

What is unique about the internet is that it is an open, two-way medium. It not only offers access to existing content throughout the world, but it allows users to amplify content from others and to create and share their own content on an even footing, more or less, with every other provider, big or small.

Just as in the 18th century, when the new American government chose to protect and promote a free press, in the 20th century the U.S. government was instrumental in enabling the growth of the internet. It did this first through its funding for creation of the ARPANET, which established the technical basis for what became the internet. And second, it adopted a “light touch” regulatory approach that placed minimal restrictions on how the internet could be used.

Perhaps the most significant governmental action has been a section of the 1996 Communications Decency Act that gave Internet Service Providers (ISPs) and “online services” (such as Google, Twitter and Facebook) immunity from liability for third-party content that they host or convey.xii This provision, known as Section 230, allows ISPs and online services to provide access to a wide range of speech without being liable for the content of the posters. It also permits them to restrict or filter materials they deem to be offensive or objectionable or that are contrary to their terms of service. In other words, with very limited exceptions, the law gives online information intermediaries the freedom either to carry or not carry content of virtually any kind without fear of legal liability for their posters’ content.xiii This does not, however, affect the liability of the original posters, who remain responsible for the content of their posts.

In some important ways, the internet represents the ultimate realization of the democratic ideal of free speech, in large measure fulfilling the desire of the Hutchins Commission to expand access to the press for ordinary citizens. At the same time, it has given rise to a cacophony of voices and to new concerns about the veracity of news and information.

Indeed, alarm bells are ringing about how technology companies are being used in ways that challenge democracy. Online social networks have been used for covert disinformation campaigns, leveraging targeted ad platforms and algorithms that promote engagement based on emotion. This has led at times to violence and civil unrest.

Questions about the impact of the internet and other new media on democratic processes helped motivate this Commission’s current endeavor. The emergence of the new digitally driven media landscape and its impact on trust is the topic of the next chapter.

i Paul Starr, The Creation of the Media: Political Origins of Modern Communications (New York: Basic Books, 2004), 70.

xii This provision is Section 230 of Title V of the 1996 Telecommunications Act, which is known as the
Communications Decency Act (CDA). It states: “No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information content provider” (47
U.S.C. § 230). For an analysis, see Electronic Frontier Foundation, “CDA 230: Section 230 of the Communications
Decency Act: The Most Important Law Protecting Internet Speech,” https://www.eff.org/issues/cda230.
The first major change to Section 230 came in 2018 with the passage of FOSTA (Fight Online Sex Trafficking
Act), which limits the immunity of online service providers who knowingly host content that promotes or
facilitates sex trafficking.

xiii In addition to the exemption for facilitating sex trafficking content contained in FOSTA, copyright violations are subject to the notice and takedown provisions of the 1998 Millennial Copyright Act.